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Witherington v Lev's Fabrications Pty. Ltd.[2014] QDC 266

Witherington v Lev's Fabrications Pty. Ltd.[2014] QDC 266

DISTRICT COURT OF QUEENSLAND

CITATION:

Witherington v Lev’s Fabrications Pty Ltd [2014] QDC 266

PARTIES:

Jason Witherington

(plaintiff)

v

Lev’s Fabrications Pty Ltd

(defendant)

FILE NO/S:

4193/2012

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

14 - 16 July 2014

JUDGE:

Kingham DCJ

ORDER:

  1. The Defendant must compensate the Plaintiff for the injuries to both his shoulder and his ankle.
  2. I will hear from Counsel as the form of final orders to give effect to my reasons on the assessment of damages and on costs.
  3. Unless those matters are agreed by way of consent orders, the Defendant has leave to provide written submissions by 4pm on Thursday 28 November and the Plaintiff has leave to provide written submissions by 4pm on Monday 1 December.

CATCHWORDS:

CIVIL – WORKERS COMPENSATION – LIABILITY – where plaintiff sustained two injuries at work – where liability admitted for one but not the other – whether the task undertaken by the plaintiff represented a real and foreseeable risk of injury to his shoulder – whether the defendant took reasonable steps in relation to that risk – defendant found liable for both injuries

CIVIL – WORKERS COMPENSATION – ASSESSMENT OF QUANTUM – where the plaintiff had dislocated his shoulder at work – where he dislocated it prior to the work injury – where the plaintiff subsequently had shoulder surgery – whether the work dislocation worsened his condition and contributed to the need for surgery – how the prior dislocation should be reflected in the assessment of damages

CIVIL – WORKERS COMPENSATION – ASSESSMENT OF QUANTUM - where the plaintiff had two injuries that affected his ability to perform manual work – where the plaintiff had some residual earning capacity – how damages for future economic loss should be assessed

COUNSEL:

R Morton for the plaintiff

J McClymont for the defendant

SOLICITORS:

Morton & Morton for the plaintiff

BT Lawyers for the defendant

Background

  1. [1]
    In a period of only 3 months while working for Lev’s Fabrications Pty Ltd, Mr Witherington, then a 20 year old trades’ assistant, was injured twice; first on 12 April 2010 when he injured his shoulder lifting a coil of pipe; and later on 14 July 2010 when a large unsecured metal fabricating machine fell on his ankle. He seeks compensation from Lev’s for breaching its duty of care to him as an employee.
  1. [2]
    WorkCover conducted the defence case and admitted Lev’s must compensate Mr Witherington for the bimalleolar fractures he sustained to his right ankle during the second incident. However, it denied Lev’s was liable to pay any damages for the shoulder injury.
  1. [3]
    Mr Witherington contended Lev’s should have identified, assessed and managed the risk the task exposed him to; provided him with assistance with the task; or trained or instructed him in how to perform the task safely. He pleaded its failure to do so constituted breaches of statutory obligations under the Workplace Health and Safety Act 1995 and the Manual Tasks Advisory Standard 2000.
  1. [4]
    WorkCover argued it had not breached its common law duty of care to Mr Witherington. The pipe was not heavy; Mr Witherington was young and fit; and he did not ask for help even though he had been told he should ask for it if he thought he needed it. Mr Witherington had not established what Lev’s could have done to prevent the injury. Mr Witherington was familiar with the basic principles of manual handling and did not need to be reminded of them.
  1. [5]
    Further, WorkCover asserted Mr Witherington had a predisposition to shoulder dislocation because of an earlier (non work related) injury to his shoulder. This was the cause of his dislocation on the day of the incident, not because the task he was given carried any particular risk. Mr Witherington denied the earlier dislocation caused any significant damage to his shoulder.
  1. [6]
    Mr Witherington argued the combination of a shoulder and ankle injury limited his future employment prospects, although WorkCover argued the long term impacts were not as serious as he maintained.
  1. [7]
    The issues are:
  • Did the task present a real and foreseeable risk of injury to Mr Witherington’s shoulder?
  • Did Lev’s take reasonable care to avoid the risk?
  • What damages should Mr Witherington be awarded for his injuries?
  1. [8]
    Before turning to the issues, I will summarise Mr Witherington’s evidence about the task and how he performed it.
  1. [9]
    On 12 April 2010, Mr Witherington was asked to clear out some discarded plumbing supplies lying underneath an external rack and to store them on the rack. He was not given any instruction on how to perform the task and was not offered any assistance.
  1. [10]
    Amongst the items was a loose coil of polypipe which was not taped or otherwise secured. The diameter of the coil was 1.8 metres. It weighed 6 kilograms.
  1. [11]
    Mr Witherington dragged the coil of pipe out from under and just clear of the rack. He raised the near side of the coil and positioned his hands on the coil about 1 metre apart. He could only get his hands around two or three coils of the pipe in each hand. His intention was to flick the far end of the coil from the ground on to the bottom shelf of the rack, which was 940mm off the ground. He would then step towards the rack as he slid the coil onto the shelf.
  1. [12]
    In preparing for that manoeuvre, Mr Witherington raised his hands above his shoulders and flexed his back to lean his upper body backwards. The near edge of the coil was above but close to his face. As he performed the flicking motion, he dislocated his shoulder. He thought the far side of the coil was approximately 1 metre off the ground at that point but could not recall if he was able to land it on the bottom shelf or whether he dropped the coil on the ground.

1.Did the task present a real and foreseeable risk of injury?

  1. [13]
    Mr Witherington contended there was a real risk he would injure himself while lifting the coil of polypipe from the ground and loading it on to a shelf for storage. The risk was that he would place an unsafe load on his shoulders and thereby injure them. The risk arose because of the weight and dimension of the coil; because the polypipe was loosely coiled (not taped or secured), making it an awkward item to hold and manoeuvre; and because he had to raise the item on to a shelf almost 1 metre off the ground.
  1. [14]
    Evidence was led from Mr McDougall, a Mechanical Engineer with extensive relevant experience. His expertise was not challenged and with the exception of a single statement in a report by an orthopaedic surgeon, Dr Pincus, no contrary opinion was led.
  1. [15]
    Mr McDougall’s evidence is of assistance for two reasons. Firstly he discussed the risks of manual handling, even of a relatively light object. Secondly he considered whether Mr Witherington did place an unsafe load on his shoulder in lifting the coil in the manner that he did.
  1. [16]
    Mr McDougall referred to a number of sources, but used a chart he extracted from a Guideline from the United Kingdom[1], because it provided an easy visual reference.

Witherington v Lev's Fabrications Pty. Ltd. [2014] QDC 266

  1. [17]
    He noted that the Manual Tasks Code of Practice 2010 (which replaced but is not materially different to the Standard) references guidelines from the United States which are more complex and allow a broader range of risk factors to be taken into account. However, when those risk factors were allowed for, he said the maximum weights recommended in those guidelines are consistent with those set by the UK Guideline.
  1. [18]
    Figure 3 shows the maximum weights for safe handling at various heights of the body and at full and half extension. It assumes two handed lifting, directly in front of the body, which are the optimum conditions for manual handling. Mr McDougall worked on 310mm and 620mm respectively as the distances for half and full arm extension, although he said that 630mm was the average arm length he had been advised.[2]
  1. [19]
    The UK Guideline sets recommended maximum weight for safe lifting, when the hands are above shoulder height, to be 10kg at half arm extension and 5kg at full arm extension. Although the Figure demonstrates the recommended weights by the position of the hands, it is position of the centre of the mass of the load that is important. The arms length is used as an easy visual reference, assuming a compact load.
  1. [20]
    In biomechanical terms, it is the moment of force which must be resisted by the joint (in this case the shoulder) that determines the potential for damage to occur. The moment of force is calculated by multiplying the weight of the object by the horizontal distance to the centre of mass of the object. The further the centre of mass in the coil is from the centreline of the body, the greater the moment of force.[3]
  1. [21]
    The UK Guideline uses a sliding scale. The load able to be lifted reduces as it moves further out from the body from the maximum at the distance of half arm extension until the maximum load is reached when the distance of the load from the body is at full arm extension.[4] Mr McDougall advised that the musculoskeletal demands of a lift increase rapidly as conditions change, such as the distance from the body.[5]
  1. [22]
    Given that evidence, the Guideline would be exceeded if Mr Witherington bore the full weight of the coil when his hands were above his shoulders, once the centre of its mass was at about 620mm from his body. The risk of injury would increase rapidly if that distance increased.
  1. [23]
    In determining the location of the centre of the mass of the coil, Mr McDougall needed to know the height of the near and far end of the coil: near and far as it related to Mr Witherington’s body. That allowed him to determine the angle of the coil and, therefore, determine how far forward from the body was the centre of the mass of the coil.[6]
  1. [24]
    Mr McDougall had interviewed Mr Witherington and asked him to demonstrate his position at the beginning and end of the lift, before writing his report. Based on that information, he concluded the centre of the mass of the coil was 750mm forward of Mr Witherington’s body when his hands were above his shoulders, equating to a lift of a compact load of 45kg with his hands in the same position (about 10mm from his body). Only 46% of adult male workers would have enough shoulder strength to lift that load. Mr McDougall considered any person who attempted the lift was at significant risk of injury.[7]
  1. [25]
    During questioning various scenarios were put to him by defence counsel which may or may not have been consistent with what Mr Witherington had demonstrated to him earlier. Because of my concern that the scenarios did not necessarily reflect what Mr Witherington had appeared to me to indicate when he had given evidence earlier in the trial, Mr Witherington was recalled to demonstrate the lift to Mr McDougall[8] and certain measurements were taken.[9]
  1. [26]
    In this demonstration, Mr Witherington’s hands ended up directly above his shoulders, bringing the centre of the mass of the coil closer to his body. At that point, he estimated the centre of the mass of the coil was 490mm from Mr Witherington’s body. This assumed the coil was at an angle of 38º below the horizontal, the angle that the coil would need to be for a man of Mr Witherington’s height to get the far end of the coil on to the shelf.
  1. [27]
    In her submissions, counsel for WorkCover argued the effect of this evidence was that the lift was within recommended guidelines. I reject that submission. Mr McDougall said the point at which Mr Witherington had his hands directly above his shoulders was the point at which the shoulders were bearing the least moment of force. As soon as his hands moved forward, the load his shoulders had to bear would increase.
  1. [28]
    Mr Witherington’s demonstration showed just how limited his safe range of movement was to or from that point. Mr McDougall said that as soon as MR Witherington’s hands moved forward more than 130mm from his body that would take the load outside the 5kg acceptable lift. Presumably this is because it would then be 620mm from his body. In Mr McDougall’s opinion it was a likelihood that Mr Witherington exceeded the guidelines in lifting the coil up to and down from the position demonstrated.[10]
  1. [29]
    Using the formula adopted by Mr McDougall in his report, with a centre of mass of a 6kg coil held at 620mm from his body, the moment of force on Mr Witherington’s shoulders was a little over 37kgs[11]. Although that is less than the 45kg[12] Mr McDougall had calculated in his report, it is still significantly heavier than the recommended maximum lift under optimum conditions (20-25kg).[13]
  1. [30]
    Mr McDougall agreed Mr Witherington could bear a greater weight at below shoulder level but said the video of the demonstration showed his hands forward of his body by 100; 130mm when above shoulder height.[14] I accept his assessment on that point.
  1. [31]
    Necessarily, the court is trying to reconstruct an event after the passage of some years, in reliance on Mr Witherington’s recollection of the position of his hands and body and where the coil was at various points. Mr McDougall’s evidence vividly demonstrated how rapidly the moment of force increased or decreased depending on the position of his hands above shoulder height and the angle at which he held this large coil of pipe.
  1. [32]
    Further, Mr McDougall performed a static calculation; that is he assumed that the pipe moved very smoothly and slowly.[15] In fact, Mr Witherington’s evidence is that he injured his shoulder at the point that he attempted to flick the coil up onto the shelf. In his report, Mr McDougall said the faster the load is lifted, the greater the force required. Factors of between 20% and 50%, sometimes as great as 80% in force can be used, depending on how rapid the lift.[16] During cross-examination he rejected the proposition that any torquing at the wrist to tilt the coil would reduce the load on the shoulders. Mr McDougall was not asked to attempt to place any percentage increase due to the flicking action Mr Witherington described. That may well not have been possible. Nevertheless, I accept that if the end of the coil was off the ground when Mr Witherington flicked the coil, as he said it was, this would have required greater force and put an increased load on Mr Witherington’s shoulders.
  1. [33]
    WorkCover relied on a statement made by Dr Pincus, an orthopaedic surgeon, during a conversation with WorkCover’s counsel recorded in a file note which Dr Pincus signed. It records the following:

Ms McClymont asked Dr Pincus whether, from the perspective of an orthopaedic surgeon, he wished to make any comment in relation to the report of Mr Brendan McDougall. Dr Pincus stated that the task of stretching up and forwards, with arms outstretched, carrying a light weight, is not inherently risky or unsafe from a medical point of view. That is an ordinary task well within the range of activities that people are able to safely carry out every day. The only reason Mr Witherington dislocated his shoulder performing that task is that he had an unstable shoulder, not because the task was associated with risk.[17]

  1. [34]
    This was not put to Mr McDougall that the task presented no risk at all. Rather he was asked to consider whether the load could be safely borne under various scenarios that may or may not have occurred. This led Mr Witherington’s counsel to question how Dr Pincus’ opinion would be dealt with during a concurrent evidence session involving Dr Pincus and Dr Van der Walt.[18] I had not anticipated evidence would be elicited from either surgeon about the mechanism of the injury. Counsel for WorkCover confirmed she did not intend to lead any further evidence from Dr Pincus in relation to that opinion. Both were content with being given the opportunity to make submissions to me about what weight I should place on that statement.
  1. [35]
    For the following reasons, I do not accept Dr Pincus’ statement if it is relied upon to establish the task did not present a real risk of injury.
  1. [36]
    The purpose of expert evidence is to assist the Court in determining issues which involve matters of special expertise. Dr Pincus is a well respected and experienced orthopaedic surgeon, but WorkCover did not argue he had relevant expertise to analyse the biomechanical factors involved in different lifting scenarios.
  1. [37]
    Counsel for Mr Witherington argued I should disregard the opinion altogether. Certainly, the file note is bereft of the information that would enable me to assess its merits, in the face of the detailed report and the lengthy oral evidence given by Mr McDougall.[19]
  1. [38]
    Dr Pincus’ view that there is nothing inherently risky or unsafe from a medical point of view in lifting a light weight with arms outstretched, suggests there might be some distinction he was seeking to draw between a medical risk and any risk the Guidelines are intended to protect against. I confess that, without hearing from Dr Pincus about this, the distinction eludes me; particularly when the purpose of the Standard is to prevent or minimise exposure to risk factors that can contribute to or aggravate work related musculoskeletal disorders.
  1. [39]
    Mr McDougall presented a fully articulated written opinion. This was exactingly tested during his oral evidence. His assumptions about the mechanism of the lift were worked over fully. However, the methodology he used to assess the risks of the various scenarios he was asked to consider was never challenged and is consistent with the Standard.
  1. [40]
    The purpose of the Standard is to prevent musculo-skeletal disorders. The Standard expressly recognises that muscular exertion needed for a lift depends primarily on the weight of the load and the distance of the load’s centre of gravity. It also identifies factors that increase the demands of a task, including that the load is unwieldy or unstable and that it is difficult to grip.  I do not know whether Dr Pincus considered any of these factors in expressing his opinion.
  1. [41]
    Mr McDougall’s calculations were based on assumptions he made clear in his report and during oral evidence. He assessed the assumed scenarios against Guidelines developed and adopted by governments in the United Kingdom, the United States and Australia for safe manual handling in the workplace. Dr Pincus did not refer to the Guidelines at all. I do not know what view he took of them.
  1. [42]
    In fairness to Dr Pincus, he was asked a broad and open ended question during a conference. WorkCover sought to rely on a file note of his response, without affording him the usual opportunity to carefully consider, express and justify his opinion in writing.
  1. [43]
    On the evidence given by Mr Witherington and Mr McDougall, I am satisfied on the balance of probabilities that there was a real and foreseeable risk that Mr Witherington would injure his shoulders by bearing an unsafe load on his shoulders, because of the shape and dimension of the coil, the height it had to be lifted to and his difficulty in gripping the coil.

2. Did Lev’s take reasonable care to avoid the risk?

  1. [44]
    The High Court neatly set out the content of an employer’s duty at common law in Czatyrko v Edith Cowan University[20]:

…an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.

  1. [45]
    In pleading its case that Lev’s had breached its duty of care, Mr Witherington alleged various failures to comply with provisions of the Workplace Health and Safety Act 1995 (WHSA) ss 30, 28 & 27A and the Manual Tasks Advisory Standard 2000 Parts 4 - 9. WorkCover questioned the relevance of that pleading. It argued s 37A of the WHSA precludes a civil claim for breach of statutory obligations. It states: no provision of this Act creates a civil cause of action based on a contravention of the provision.
  1. [46]
    WorkCover argued it was not enough for Mr Witherington to simply assert a failure to fulfil a statutory obligation or standard unless it was also established that there was a breach of the employer’s common law duty of care which caused his injuries. I accept that is so and counsel for Mr Witherington did not argue otherwise. However, breaches of statutory obligations form part of the evidence the Court must consider in determining whether the common law duty of care has been breached.[21]
  1. [47]
    The Statement of Claim is drafted broadly and it might be read to assert a right to relief on the basis that Lev’s breached its statutory obligation to ensure the workplace health and safety of the Plaintiff.[22] However, that is not a fair reading of the Statement of Claim. Mr Witherington’s case was more particularly pleaded than that and was conducted on the basis of specific omissions.
  1. [48]
    As I understood Mr Witherington’s argument, it was that Lev’s failures to comply with the WHSA and the Standard, in the context of this case, establish Lev’s breached its common law duty because the provisions relied upon identify the reasonable steps that Lev’s could have taken, but did not.  By and large, those provisions describe processes he alleges Lev’s failed to engage in: assessing and managing the risks involved in manual handling tasks and training him in performing such tasks safely.
  1. [49]
    Mr Witherington alleged Lev’s failed to comply with the following statutory obligations:

Firstly, in relation to WHSA s 30 & s 27A, Lev’s:

  • Did not ensure Mr Witherington’s workplace health and safety (s 30);
  • Did not properly manage exposure to the risk of injury by identifying the hazards of the task (s 27A);
  • Did not assess the risk of injury that may result because of the hazards (s 27A); and
  • Did not decide on appropriate control measures to prevent or minimise the level of the risk (s 27A).
  1. [50]
    Secondly, in relation to the Standard, Lev’s:
  • Did not consult with workers, including Mr Witherington, in relation to their respective manual handling tasks (Part 4);
  • Did not train Mr Witherington in relation to the task (Part 5);
  • Did not employ any workers who had been trained in risk management assessments (Part 5.3);
  • Did not train Mr Witherington in risk factors and the various types of musculo-skeletal disorders that could be caused by manual tasks, including the particular task he was engaged in when he injured his shoulder ;
  • Did not carry out any risk management process in relation to that task (Part 6);
  • Did not develop any risk management plan in relation to manual handling tasks (part 6.3);
  • Did not carry out any risk identification process (Part 7);
  • Did not carry out any risk assessment in relation to manual handling (Part 8);
  • Did not find and select; implement; trial; monitor and evaluate the best control options for the risks involved in carrying out the manual handling tasks (Part 9).
  1. [51]
    There is no substantial conflict between Mr Witherington and Mrs Page-Levinge (one of the owners of the business) about the facts relevant to those matters. The defence did not assert that it did comply with the requirements or recommendations of s 27A or the Standard or that it did something equivalent; whether in relation to the particular task or generally.
  1. [52]
    As to the particular task, it was common ground that Mr Witherington was given no specific instruction, training or supervision in relation to this lift. The defence did not lead evidence that Lev’s did anything to identify, assess or attempt to control any particular risk with the lift.
  1. [53]
    As to the general approach to manual handling in the workplace, the only training Mr Witherington received was on the job training about how to use the machines. Lev’s had no written safety procedures. The oral safety procedures Mrs Page-Levinge gave evidence about related to the use of the machines. Mr Witherington was not given any information or training about how to identify, assess or control risks of manual handling.
  1. [54]
    At one point in her evidence, Mrs Page-Levinge said she had told Mr Witherington to ask for help if he found something too heavy or awkward. When asked to say what she had actually said to Mr Witherington, she said she told him to ask if he needed any help with anything.[23] Mr Witherington agreed it was possible that Mrs Page-Levinge had said to him many times to ask if he needed help or if something was too heavy.[24] In my view little turns on the precise details of these statements by Mrs Page-Levinge, but in case it is relevant at another point in these proceedings, I find Mrs Page-Levinge spoke to Mr Witherington and others on more than one occasion about seeking help with heavy loads. However, it was not put to Mr Witherington that she had ever said anything about an awkward lift and, when asked to be precise, Mrs Page-Levinge did not repeat that assertion. I am not satisfied that she did say anything to Mr Witherington about asking for help if he thought a load would be awkward to lift.
  1. [55]
    In considering whether Lev’s took reasonable care to avoid the risk of injury posed by this particular task, it is relevant to consider evidence of the workplace culture in relation to safety matters generally. This includes evidence of the circumstances of the ankle injury.
  1. [56]
    Mr McDougall referred to the importance of work culture in promoting safe work practices. The link between this and occupational health and safety is acknowledged in the Australian Standard AS 1470-1986 Health and Safety at Work – Principles and Practices to which Mr McDougall referred. He said that without a culture that promotes safe work practices, it is predictable that workers might attempt heavy manual tasks using the wrong criteria for acceptability.[25]
  1. [57]
    One indication of the work culture in relation to manual handling at Lev’s is given by a task that Mr Witherington did have to perform in the course of his ordinary duties. He gave evidence of lifting and carrying 2.4m x 1.2m x 1.6mm sheets of zincanneal (weighing approximately 35kg) from a horizontal storage rack and placing them on a 1m high guillotine. Mr Witherington did that on his own, without handling aids, holding the sheets vertically and gripping them from the top.[26] This task was identified by Mr McDougall as a high risk manual handling task.[27]
  1. [58]
    He was challenged about how frequently he undertook such a task. Mr Witherington gave evidence about getting the zincanneal sheets from a storage rack. The sheets were of various thicknesses, the heaviest being 1.6mm. During cross-examination he said 1.6mm wasn’t very popular, but rejected the suggestion that this was a task he engaged in rarely. He confirmed when he had got that size sheet, he had lifted it alone.[28]
  1. [59]
    The defence did not lead contrary evidence. I accept that Mr Witherington frequently carried sheets of metal to the guillotine table and did so in the manner he described. I also accept that from time to time he had to get very heavy sheets of zincanneal that were 1.6mm thick; that he carried them alone; and that he had not been instructed that he should only carry sheets of that dimension with the assistance of another person.
  1. [60]
    The circumstances of the second injury also illuminate the work safety culture at Lev’s. In that incident, a piece of equipment called a roller fell onto Mr Witherington’s ankle because the machine was not secured to the floor. During his recovery from that injury, Mr Witherington was placed on light duties. It is telling that one duty assigned to him was to prepare a set of safety procedures for the business.
  1. [61]
    Finally, the work culture was vividly illustrated by Mrs Page-Levinge’s evidence about the subject task. When asked if she had said anything to Mr Witherington about the task of clearing out under the rack she replied “I just assumed that people would know how to lift things.”[29]
  1. [62]
    All the evidence led about Lev’s approach to workplace safety demonstrates a decidedly lax approach, whatever the risk. Focussing on manual handling tasks,
  • WorkCover argued a reasonable employer would not need to do more than Lev’s did in relation to this task because of the following factors:
  • Mr Witherington was young and apparently fit;
  • He had engaged in the physical tasks of a trades assistant in sheet metal fabrication for more than a year without suffering musculo-skeletal injury;
  • Mr Witherington did not think he needed help;
  • The coil weighed only 6kg;
  • This was far lighter than items he routinely lifted in his usual duties;
  • The task was to lift the coil from the ground to a shelf about 940mm high;
  • The coil would not be lifted in a horizontal position, but would probably be lifted whilst held on an angle, so that the weight of the coil would be closer to the body;
  • The coil would only have to be lifted once;
  • No twisting would be required when lifting the coil.
  1. [63]
    Some of these factors deserve special scrutiny. Firstly, reliance on Mr Witherington’s assessment about whether he needed help is misconceived, particularly in the absence of any relevant training or instruction by Lev’s.
  1. [64]
    Mr Witherington agreed he was familiar with basic manual handling techniques including keep the load as close to you as possible and not to twist while lifting. He said he used these techniques at work and at home and did not need to be reminded of them.[30]
  1. [65]
    He may have been familiar with them but the way he performed the task establishes he did not understand how to apply them. He was not asked whether he understood the centre of gravity of a load. There is no evidence that Lev’s did anything to ensure that he knew and understood risks of manual handling and ways in which the risks can be avoided or reduced.
  1. [66]
    The only risk of manual handling apparently identified at Lev’s was that a load might be too heavy for one person. I have already considered the evidence that shows this is an inadequate identification of the risk factors.
  1. [67]
    In any case, Lev’s left it entirely to Mr Witherington to make that assessment himself. It is not open to Lev’s to discharge its duty by simply delegating it to the very person to whom it owes the duty; its employee.[31]
  1. [68]
    Factors (g) and (i), which relate to the manner in which the load would be lifted, demonstrate the very error of hindsight reasoning that WorkCover alleged Mr Witherington’s case involved. They involve reasoning backwards from Mr McDougall’s evidence about how that coil of polypipe could have been lifted safely.
  1. [69]
    Without evidence of risk assessment or instruction or training in techniques of safe manual handling, particularly of an awkwardly shaped load, there could simply be no probability about the angle of the coil, the position of the mass to the body or whether any twisting would be required.
  1. [70]
    Whether those risk factors were present depended entirely on the manner in which the task was undertaken. That is the very complaint Mr Witherington makes; that he was not assisted with the task, or trained, instructed or supervised in performing the task safely. The inclusion of factors relating to the method of the lift in WorkCover’s submissions illuminates the inherent risk involved in the task if it were not performed within those parameters.
  1. [71]
    In a different case the distinction between a statutory obligation and the common law duty might be stark. For example, a statutory obligation may be prescriptive about employing a particular control measure regardless of the magnitude or frequency of the relevant risk. Such a prescription might exceed the common law duty to take reasonable care, which imports a notion of proportionality of the measure to the risk.
  1. [72]
    Here, though, by and large the statutory requirements that Mr Witherington relied upon involved processes to identify, assess and manage risks, including by training employees in safe methods of handling. There might be argument about whether a particular process was sufficiently articulated or documented to meet the statutory requirement; but at the heart of these provisions lies the fundamental premise that employers are responsible for identifying, assessing and managing workplace risks.
  1. [73]
    In general terms, apart from the instruction about asking for help with a heavy load, Lev’s took no steps to protect Mr Witherington from the foreseeable risks of manual handling tasks. In relation to the particular task, Lev’s took no steps at all to protect Mr Witherington from the foreseeable risk of injury presented by being required to lift an unsecured coil of pipe of that weight and dimension, which was difficult to grip.
  1. [74]
    There were safe ways the task could have been performed. Mr McDougall identified some in his report. For example, had Mr Witherington lifted one edge of the coil to rest on the shelf and then picked up the other edge and slid it on to the shelf, there would have been no risk of shoulder injury. The weight of the coil would be supported, first by the ground, and then by the shelf and there would be no need to bear its weight at extension from his body. Or, he could have lifted the item with another person.
  1. [75]
    There is no evidence of any particular difficulty for Lev’s in assisting Mr Witherington with this task or in training, instructing or supervising him about safe methods of performing such a task. Accordingly, I find that Lev’s did not take reasonable care to avoid the real risk that Mr Witherington would be injured when lifting the coil of polypipe.

3. What damages should Mr Witherington be awarded for his injuries?

  1. [76]
    Except in minor respects, the parties do not agree upon the assessment of damages. Mr Witherington has claimed damages in relation to pain and suffering, past economic loss, future economic loss and past and future expenditure necessitated by the injuries.
  1. [77]
    Before assessing damages, it is necessary to state my conclusions on the following conflicts that affect how damages should be assessed:
  1. (a)
    the impact of the first dislocation of Mr Witherington’s shoulder;
  1. (b)
    the extent to which Mr Witherington’s earning capacity is impaired by the combined effect of the injuries to his ankle and shoulder;
  1. (a)
    The first dislocation to Mr Witherington’s shoulder
  1. [78]
    The first time Mr Witherington dislocated his left shoulder was during a fight in the early hours of 21 February 2009. He suffered an anterior dislocation which was reduced under sedation and morphine. On 3 March 2009 at an outpatient clinic at the Maryborough Base Hospital, he complained of pain and not being able to lie on it. There was no record of instability in the shoulder, only of pain and of mild ABD (abduction) and IR (internal rotation).[32]
  1. [79]
    He started work with Lev’s on 13 March 2009 and did not attend his next outpatient clinic appointment because, he said, his shoulder did not hurt anymore.[33] He worked at Lev’s for 13 months without incident until 12 April 2010 when he lifted the coil of pipe and dislocated his shoulder a second time. Subsequently, he dislocated his shoulder twice more, neither time at work: on 18 September 2010 (when reaching for a brick); and on 23 January 2011 (when helping to push a car out of a bog).
  1. [80]
    Dr Van der Walt and Dr Pincus, two experienced orthopaedic surgeons who had examined Mr Witherington and provided reports, gave evidence in a concurrent evidence session. I appreciated their willingness to give evidence in this way It greatly assisted me to understand the consequence of their different opinions.
  1. [81]
    Dr Van der Walt considered the first dislocation of Mr Witherington’s shoulder would have led to some propensity for future dislocation. This could be due to either a Bankart lesion or soft tissue damage which affected muscular control of the shoulder. A Bankart lesion involves a disruption of the attachment of the cartilage rim around the glenoid, the shallow socket on the shoulder-blade into which the humerus fits, forming the shoulder joint. If the disruption is only to the cartilidge, this is described as a Bankart lesion. If it involves disruption or fracture of the bony structure of the glenoid as well, it is called a Bony Bankart lesion.
  1. [82]
    It seems to be common ground that it would be hard to diagnose either a Bankart’s lesion or a Bony Bankart’s lesion by X Ray. In Mr Witherington’s case it was not diagnosed until he had an MRI after the third dislocation.
  1. [83]
    Dr Van der Walt considered it possible for a person to have a first dislocation without a Bankart lesion and a second dislocation in which a Bankart lesion was sustained.[34] Dr Pincus had never encountered this and thought it would be hard to prove.[35]
  1. [84]
    They agreed there was no evidence of instability in the way in which Mr Witherington presented and performed his work before the second dislocation. Neither thought it significant that Mr Witherington was not apprehensive when performing quite demanding physical tasks in the 15 months or so until he dislocated his shoulder lifting the coil.[36]
  1. [85]
    Both considered it likely that a Bony Bankart lesion was sustained on the first dislocation. Dr Pincus expressed this with a greater degree of certainty than Dr Van der Walt, saying that it was almost certain that he had sustained a Bony Bankart lesion on the first dislocation.[37]
  1. [86]
    Dr Van der Walt was more circumspect; tending to think a Bankart lesion was involved because of the subsequent history of recurring dislocations[38]  and agreed that it was more likely that he sustained the Bony Bankart lesion on the first occasion.[39]
  1. [87]
    The more significant point of difference was what that diagnosis meant for his prognosis.
  1. [88]
    Dr Van der Walt said the second injury aggravated whatever was there on the first occasion.[40] He considered it possible that a second dislocation could make a Bankart lesion worse, given the work Mr Witherington was doing. If the second dislocation had been avoided, he might have gone on with no difficulty at all.[41]
  1. [89]
    Dr Pincus disagreed that the Bankart lesion could get worse with subsequent dislocations.[42] He spoke of a study that he said demonstrated there was a 90% chance of recurrent dislocations if a man had his first dislocation aged between 18 and 20, with the average time to second dislocation being between 44 and 46 weeks.[43]  Mr Witherington’s work dislocation was 13 months (or about 56 weeks) after his first injury, which Dr Pincus felt fitted comfortably with those findings.
  1. [90]
    WorkCover relied on that evidence to justify dramatically reducing the awards it says Mr Witherington would be otherwise entitled to: by about 75% for general damages and past economic loss and by about 80% for future economic loss. Both Dr Pincus and Dr Van der Walt told the court they had not seen enough patients in this age group to assess the likelihood of recurrent dislocation for this cohort by drawing on clinical experience.[44] Nevertheless, WorkCover said I should act on Dr Pincus’ assessment because his opinion was supported by literature that Dr Van der Walt accepted was valid.
  1. [91]
    Dr Van der Walt did say that he had to accept a recognized article in a recognized scientific magazine, but he was not aware of those statistics, although he accepted that they existed. It is unfair to Dr Van der Walt, however, to assert that this is an endorsement of those findings. He was careful to state that he could not form a personal opinion based on his experience.
  1. [92]
    To proceed as I have been asked to do by WorkCover, I would have to accept the following propositions. Firstly, that Dr Pincus had accurately reported the findings of the study. Secondly, that the research methodology and statistical analysis was sound. Thirdly, that its findings provided a proper basis for assessing the future probable effects of a pre-existing injury, that was not diagnosed until after Mr Witherington had dislocated his shoulder for a third time. Whilst I am willing to accept the first proposition, I see no basis for accepting the second or third, given the state of the evidence.
  1. [93]
    Dr Pincus did not reference the study in his report. His report stated that a young person who sustained a substantial bony Bankart’s lesion is prone to having dislocations.[45] He did not purport to place any % on the probability of recurrent dislocations or the average period by which a second dislocation was likely to occur.
  1. [94]
    I raised with counsel for WorkCover the extent to which Dr Pincus relied on the study and invited counsel to confer if WorkCover wished to tender it in evidence.[46] Although it wasn’t tendered, the Court was asked to act on a statistical analysis that not even Dr Pincus could say accorded with his own clinical experience.
  1. [95]
    Dr Van der Walt was in no position to query the reported findings. Mr Witherington had no opportunity to consider the relevance of the study to his case or to lead evidence about those findings. Nor did he have the opportunity to counter this evidence by reference to other clinical studies.
  1. [96]
    Mr Witherington has made out his case that his shoulder was injured as a result of Lev’s negligence. He did not also have to disprove the defendant’s assertions about the effect of his prior shoulder injury.[47] The onus was on WorkCover to adduce evidence about both the pre-existing condition and its future probable effects, with some reasonable measure of precision.[48]
  1. [97]
    To the extent that Dr Pincus’ evidence rests on the referenced study, I cannot act upon it with any confidence. When that study is removed from Dr Pincus’ evidence, there is much that the experts did agree upon.
  1. [98]
    Firstly, both considered the second dislocation would have contributed to the instability of the shoulder. It seemed that Dr Pincus’ disagreement with Dr Van der Walt was about the nature of the further damage. He considered that likely to be soft tissue stretching not an extension of the Bankart lesion, as Dr Van der Walt thought possible.[49] Dr Van der Walt said he believed each dislocation facilitated the next. Dr Pincus said clinical evidence would suggest that they become easier and easier to pop out.[50]
  1. [99]
    Another point on which they agreed is that neither was likely to recommend surgery after a first dislocation, except possibly for an elite athlete. Dr Pincus explained the reason surgery might be indicated after only one dislocation for this cohort is that their risk of further dislocation is so much greater, because of the nature of their activities.[51]
  1. [100]
    They also agreed that the point at which surgical stabilisation became inevitable was when the time between dislocations became shorter and the dislocations became very easy, such as the circumstances in which Mr Witherington dislocated his shoulder the third and fourth times.[52]
  1. [101]
    Although Dr Pincus held to his view that there was only a 10% chance Mr Witherington would not dislocate his shoulder again after the first dislocation, he conceded he had stated the following in a signed file note:

some patients are able to avoid recurrent dislocation by protecting the shoulder to a certain extent, giving up certain sports, etcetera.[53]

  1. [102]
    In my view, the important matters upon which the experts agreed were as follows:
  • It was not inevitable that Mr Witherington would dislocate his shoulder again.
  • The nature of a person’s activities impacts on the probability of further dislocation.
  • Each dislocation makes some contribution to shoulder instability, evidenced by the time between dislocations contracting and the ease of dislocation increasing.
  • Neither would have recommended surgical intervention in Mr Witherington’s case after only one dislocation.
  • The point at which surgery became inevitable was when the dislocations became easy.
  • The third and fourth dislocations were easy dislocations.
  1. [103]
    Given that consensus, whether the second dislocation caused soft tissue stretching or worsened the bony Bankart’s lesion, I am satisfied it made Mr Witherington’s shoulder more unstable and materially contributed to the progression of his shoulder condition towards easy dislocations and the need for surgery.
  1. [104]
    The determination I must make is how to reflect the relative contributions of the first and second dislocations in an assessment of damages. I have already explained why I could not apply the 90% (or something approaching that) derived from the study Dr Pincus referred to. That is the basis for the significant discounts contended for by Workcover.
  1. [105]
    Nevertheless, the real possibility that Mr Witherington’s shoulder condition might have progressed to the point that surgery was required anyway must be taken into account. The award for general damages will reduced somewhat because a component relates to the requirement for surgery. Past economic loss will not be discounted, because the justification offered for doing so – that he was likely to have dislocated his shoulder and been off work during that period anyway - is derived from the study. I will apply an additional discount to the damages I would otherwise award for future economic loss, beyond the conventional discount for contingencies of 12%.
  1. [106]
    WorkCover argued the discount range was between 50% and 90%. The latter can be set aside as it was derived from the study. WorkCover submitted 50% represented the effect of Dr Van der Walt’s evidence. Certainly he agreed with this proposition from counsel:

But it is still probable, is it not, that he will have second dislocation because of the Bony Bankart’s [sic] lesion?[54]

  1. [107]
    However, at another point in his evidence, he said there were an awful lot of people that dislocate their shoulders that recover and never has [sic] any further trouble with the shoulder. [55]
  1. [108]
    Mr Witherington was a fit young man. He was not apprehensive in taking on heavy manual tasks in the workplace and can be expected to have the same approach to his recreation. I consider a discount of 30% instead of the usual 12% for contingencies is an adequate allowance for the real prospect, but not the certainty, that he would have suffered recurrent dislocations and required surgery, even without the work accident.
  1. (b)
    Mr Witherington’s residual earning capacity
  1. [109]
    The other factor that will affect assessment of his future economic loss is his residual earning capacity. Mr Witherington is a young man with limited education. He has demonstrated the capacity and desire to improve his employment prospects and has already obtained some TAFE and other certificates. WorkCover accepts that he has not malingered. Mr Witherington is prepared to widen his search for work and to move to obtain employment outside his home town.
  1. [110]
    Mr Witherington’s ankle fractures have been surgically fixed but he continues to experience pain with prolonged standing, discomfort with sustained walking and cannot comfortably squat, which would impede his ability to crouch or climb. One aspect of his pain is the localised tenderness over the prominent metalwork in his ankle. That is likely to improve if the metalwork is removed and Mr Witherington said he would undergo that procedure if advised he would benefit from it. Dr Pincus and Dr Van der Walt said their clinical experience was that patients did improve in their symptomatology generally after this procedure, although it was not certain.[56]
  1. [111]
    His shoulder is now stable. One outcome of the surgery to stabilise the shoulder is that he now has a significant functional restriction for overhead activities.[57] He is unlikely to suffer further injuries or acute episodes of pain in his shoulder.
  1. [112]
    In assessing his residual earning capacity, the Court must bear in mind the combined effect of the physical impairments for a young man of limited education.
  1. [113]
    The evidence given by Mr Ng, an Occupational Therapist, that Mr Witherington is precluded from heavy or physically demanding occupations was not seriously contested. WorkCover did not place strong reliance on Dr Pincus’s view that Mr Witherington could work as a sheet metal worker. In any case, Dr Pincus did not demonstrate that he understood what that job entailed. I accept Mr Ng’s assessment that Mr Witherington is suitable for occupations in the Sedentary to Light range, although that is limited by his reduced tolerances for standing and walking.
  1. [114]
    Mr Ng saw Mr Witherington in April 2012 and 2014. In expressing his opinion about Mr Witherington’s employment prospects he was able to take into account his efforts over 2 years to seek lighter employment and his further training and job network assistance. He considers Mr Witherington will continue to face many barriers. Mr Witherington’s location, his history of compensation claims and his extended time out of the workforce led Mr Ng to opine that Mr Witherington would continue to experience frequent and often sustained periods of unemployment. Mr Witherington has indicated his willingness to deal with one of those barriers by moving for work if it is available elsewhere. His mobility without first securing work, though, will be restricted by his limited means.
  1. [115]
    Counsel for Mr Witherington contended that the award should be assessed on trade salaries. Although there is evidence he was exploring the possibility of an apprenticeship with Lev’s,[58] there is insufficient evidence to persuade me that this is an appropriate basis for assessment. His loss should be calculated on the assumption that he worked as a trades assistant.
  1. [116]
    There should be some further discount for residual earning capacity. I consider a discount of a further 15%, given the 30% already applied doe to the prior injury is reasonable.
  1. [117]
    Because the dates on which the shoulder and ankle injuries occurred falls either side of 1 July 2010, a different regime for assessment applies to assessing general damages, for the ankle injury.

Assessment of damages

  1. (a)
    Damages referable only to the  shoulder injury
  1. (i)
    general damages
  1. [118]
    These damages are assessed according to common law principles. There was little between Dr Van der Walt and Dr Pincus on the extent of his whole person impairment referable to the shoulder injury: at 4% to 5%. Mr Witherington is a young man with a significant functional restriction of his movement above shoulder height, as a consequence of surgery to stabilize his shoulder. However, it is unlikely that he will suffer further injuries or acute episodes of shoulder pain, because the shoulder has been stablilised.[59]
  1. [119]
    I have had regard to the awards I was referred to in Batiste v State of Queensland [2000] QSC 315 ($60,000) and Duong v Versacold Logistic Ltd & Ors [2010] QSC 466 ($40,000). Batiste’s case was quite different. The injury was a posterior dislocation, a relatively rare and serious injury requiring a significant degree of force. While there was a prior history of anterior dislocation, the trial judge considered that did not render Batiste vulnerable to a posterior dislocation without significant trauma. There was also an associated psychiatric injury that was included in the assessment of $60,000 for general damages.
  1. [120]
    Duong’s case is more recent and more comparable, in relation to the assessment of general damages, because the symptoms resolved quickly allowing a prompt return to duties, as in Mr Witherington’s case. However, that injury was less serious than Mr Witheringon’s, given my finding that the subject dislocation progressed Mr Witherington’s condition towards the need for surgery.
  1. [121]
    Taking into account the age of the award in Batiste (14 years ago) and the lesser injury in Duong, the starting point for Mr Witherington should be in the order of $50,000. To reflect the real possibility that he would at some time have required surgery, even without the work injury, I will allow $30,000 with interest at 2% to the date of the order.
  1. (ii)
    past economic loss
  1. [122]
    Mr Witherington received $729.51 for workers compensation in relation to this injury only. The parties agreed this should be marked up by 15% to $858.25. I allow past loss of superannuation attributable solely to the shoulder injury at $77.24.
  1. (iii)
    expenses
  1. [123]
    I allow $1,693.11 for Work Cover expenses and $115.00 for a Fox v Wood claim.
  1. (b)
    Damages referable only to the ankle injury
  1. (i)
    general damages
  1. [124]
    Because this injury occurred after 1 July 2010, damages must be assessed with reference to the Workers’ Compensation and Rehabilitation Regulation 2003. It is common ground that the relevant item is Schedule 9 Item 142 which gives Injury Scale Values (ISV) of 6 to 10. WorkCover proposed ISV 7 ($8,720) while Mr Witherington contended ISV 10 ($12,950) was appropriate because he experiences each of the examples of moderate disabilities indicated for this item: difficulty walking on uneven ground; awkwardness on stairs; irritation from metal plates and residual scarring.
  1. [125]
    Although, Dr Van der Walt assessed a 4% whole person impairment for this injury, taking into account that Mr Witherington is a young man and that surgical intervention is only likely to deal with localised tenderness caused by the metalwork, I consider ISV 9 adequately reflects the relevant factors. This award will not be discounted as there is no prior condition. No interest is awarded.
  1. [126]
    (ii) past economic loss
  1. [127]
    Mr Witherington received $3,173.48 in workers’ compensation benefits for the ankle injury and these should be marked up to $3,700.00. Lost superannuation on that amount at 9% is allowed at $333.00.
  1. [128]
    (iii) other items
  1. [129]
    I allow $1,938.85 for Work Cover expenses and $795.00 for a Fox v Wood claim. I allow $6,000 for further surgery to Mr Witherington’s ankle.
  1. (c)
    Damages to which both injuries attributed
  1. (i)
    past economic loss
  1. [130]
    I award past economic loss from the time Mr Witherington resigned to the date of the order at $550 net per week. For reasons already given, I see no warrant for reducing the award to account for possibility that he would have had another dislocation in that period anyway.
  1. [131]
    Further, Mr Witherington’s decision to resign was directly linked to the injuries: firstly, because he needed to undertake shoulder surgery; and secondly, because he was contemplating making a claim against Lev’s and would have felt uncomfortable working in such a small workplace while that was in progress.
  1. [132]
    Mr Witherington had a short work history prior to starting at Lev’s, which is hardly surprising given his age. There is nothing to suggest that he was likely to leave Lev’s without a position to go to. He was a young man with limited education and a desire to progress, evidenced by his raising the possibility of doing an apprenticeship.
  1. [133]
    The award for past economic loss will not be discounted. Interest is allowed at 5% and past superannuation at 9%.
  1. (ii)
    future economic loss
  1. [134]
    Although Mr Witherington had explored the possibility of undertaking an apprenticeship at Lev’s, I am not satisfied there is an adequate foundation for assessing damages for future economic loss on tradesman rather than trades assistant wages. The latter will be the basis for assessment.
  1. [135]
    That figure should be calculated assuming Mr Witherington would otherwise have worked to 70. After discounting for present receipt, that figure should be further reduced by 45% for contingencies; taking into account the real possibility that shoulder surgery would have been required; and taking into account Mr Witherington’s residual earning capacity.
  1. [136]
    Future loss of superannuation is allowed at 9%.
  1. (iii)
    other items
  1. [137]
    Dr Van der Walt and Dr Pincus agreed that Mr Witherington was not likely to experience flare ups of his conditions and that he was not likely to get any benefit from physiotherapy. They considered a gym program would be beneficial. Mr Ng’s experience, however, was that physiotherapy can be helpful in maintaining mobility once in the workplace. Given all relevant witnesses consider Mr Witherington would benefit from some further treatment or targeted activity, I will allow $5,000 towards the costs of ongoing therapy.
  1. [138]
    Mr Ng considered Mr Witherington would benefit from specific occupational intervention to assist with employment preparation and placement and that will be allowed at $1,200.
  1. [139]
    Finally, the award will include the amount of $965.70 to be refunded to Medicare.

Conclusion

  1. [140]
    I have found in favour of Mr Witherington on liability and expressed the amounts that I allow for damages under various items, or the basis upon which the item is to be calculated.
  1. [141]
    I will hear from Counsel as to the form of final orders to give effect to these reasons and on the question of costs. I will receive submissions in writing on both matters, the defendant has leave to provide written submissions on both matters by 4pm on Thursday 28 November. The plaintiff has leave to do likewise by 4pm on Monday 1 December.
  1. The Defendant must compensate the Plaintiff for the injuries to both his shoulder and his ankle.
  2. I will hear from Counsel as the form of final orders to give effect to my reasons on the assessment of damages and on costs.
  3. Unless those matters are agreed by way of consent orders, the Defendant has leave to provide written submissions by 4pm on Thursday 28 November and the Plaintiff has leave to provide written submissions by 4pm on Monday 1 December.

Footnotes

[1] UK Health & Safety Executive, Getting to Grips with Manual Handling – A Short Guide, HSE Books UK Figure 3: Guidelines for lifting two handed directly in front of the body.

[2] Transcript 2-83, line 14

[3] Report prepared by Brendan McDougall of Intersafe on 1 August, 2013, p7.

[4] Transcript 2-84, line 46 to 2-85, line 4.

[5] Report prepared by Brendan McDougall of Intersafe on 1 August, 2013 p5.

[6] Transcript 2-89, lines 24-28.

[7] Report prepared by Brendan McDougall of Intersafe on 1 August, 2013 p 9.

[8] Recording of the demonstration is Exhibit 22

[9] Transcript 2-107, line 30 to 2-108, line 6.

[10] Transcript 2-112, line 34 to 113, line 31

[11] 6kg x 6.2 = 37.2

[12] 6kg x 7.5 = 45

[13] Report prepared by Brendan McDougall of Intersafe on 1 August, 2013 p5

[14] Transcript 2-114, lines 3-9

[15] Transcript 2-85, lines 29-30

[16] Transcript 2-85, lines 36-39

[17] Exhibit 10

[18] Transcript 3-3, line 1 to 3-7, line26

[19] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [87]

[20] Czatyrko v Edith Cowan University (2005) 215 ALR 349, [12]

[21] Leighton Contractors v Fox (2009) 240 CLR 1,[49]; Smith v Professional Suites [2013] QCA 80, [64]

[22] Statement of Claim at paragraph 6(g)

[23] Transcript 3-69, lines 20-21

[24] Transcript 2-13, lines 33-37

[25] Report prepared by Brendan McDougall of Intersafe on 1 August, 2013 p13

[26] Transcript 1-28, line 38 to 1-31, line 6

[27] Report prepared by Brendan McDougall of Intersafe on 1 August, 2013 p12

[28] Transcript 2-23, line 39 to 2-24, line 27

[29] Transcript 3-67, lines 2-3

[30] Transcript 2-22, lines 10-29

[31] Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424, [34].

[32] Exhibit 8, p 81

[33] Transcript 1-26, lines 18-21

[34] Transcript 3-18, lines 16-35

[35] Transcript 3-19, lines 27-40

[36] Transcript 3-21, line 22; 3-22, line 5; 3-22, lines 32 to 33; 3-22, line 42; 3-24, lines 6-9

[37] Transcript 3-35, lines 15-19

[38] Transcript 3-16, lines 12-35; 3-18, line 16

[39] Transcript 3-29, lines 5-8

[40] Transcript 3-18, lines 33-35

[41] Transcript 3-22, line 45 to 3-23, line 20

[42] Transcript 3-24, lines 13-15

[43] Transcript 3-19, lines 5-22

[44] Transcript 3-29, lines 28-30; 3-31, lines 29-3.3

[45] Exhibit 9, p 5

[46] Transcript 3-55, line 1 to 3- 56, line 25

[47] Watts v Rake (1960) 108 CLR 158, per Menzies J

[48] Purkess v Crittenden (1965) 114 CLR 164, 168

[49] Transcript 3-32, line 20

[50] Transcript 3-32, line 41 to 3-33, line 7

[51] Transcript 3-33, lines 9-42

[52] Transcript 3-34,  lines 1-25

[53] Transcript 3-37, lines 18-42

[54] Transcript 3-36, lines 9-12

[55] Transcript 3-18, lines 18-19

[56] Transcript 3-50, line 33 to 3-51, line 12

[57] Transcript 3-42, line 1 to 3-43, line 15

[58] Transcript 1-49 l 8-11

[59] Transcript 3-54 at L14

Close

Editorial Notes

  • Published Case Name:

    Witherington v Lev's Fabrications Pty. Ltd.

  • Shortened Case Name:

    Witherington v Lev's Fabrications Pty. Ltd.

  • MNC:

    [2014] QDC 266

  • Court:

    QDC

  • Judge(s):

    Kingham DCJ

  • Date:

    21 Nov 2014

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
1 citation
Jump To
Cite 1 - (2004) 217 CLR 424
Batiste v State of Queensland [2000] QSC 315
1 citation
Jump To
Cite 1 - [2000] QSC 315
Czatyrko v Edith Cowan University (2005) 215 ALR 349
1 citation
Jump To
Cite 1 - (2005) 215 ALR 349
Duong v Versacold Logistics Ltd [2010] QSC 466
1 citation
Jump To
Cite 1 - [2010] QSC 466
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
1 citation
Jump To
Cite 1 - (2009) 240 CLR 1
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
1 citation
Jump To
Cite 1 - (2001) 52 NSWLR 705
Purkess v Crittenden (1965) 114 CLR 164
1 citation
Jump To
Cite 1 - (1965) 114 CLR 164
Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2013] QCA 80
1 citation
Jump To
Cite 1 - [2013] QCA 80
Watts v Rake (1960) 108 CLR 158
1 citation
Jump To
Cite 1 - (1960) 108 CLR 158

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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